IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

196 Pages·2014·10.15 MB·English

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION EIGHT
JAMES D. MCGEE, Court of Appeal No. B252570
Plaintiff and Appellant, [Related Appeal Pending,
5th Civil No. F068477]
v.
Los Angeles Superior Court Case
TORRANCE UNIFIED SCHOOL No. YC068686
DISTRICT, and BARNHART-
BALFOUR BEATTY, INC., dba
BALFOUR BEATTY
CONSTRUCTION, et ai.,
Defendants and Respondents.
Appeal From The Judgment
Of The Superior Court, County of Los Angeles
Hon. Stuart M. Rice, Judge
APPELLANT'S MOTION FOR JUDICIAL NOTICE
Kevin R. Carlin, Esq. (SBN 185701)
CARLIN LAW GROUP, A.P.C.
4452 Park Boulevard, Suite 310
San Diego, CA 92116
Telephone: [phone]
Facsimile: [phone]
[email protected]
Attorney for Appellant
James D. McGee
Pursuant to rule 8.54 of the California Rules of Court, Evidence Code
section 452 and 459, Appellant James D. McOee ("Appellant") moves for
judicial notice of the following documents:
Exhibit Entry Date Page
1 California Education Code Sections 1/01/98 AMJNOOI
17400-17429
2 Opening Brief of Appellant Howard 2/19/14 AMJN008
Contracting, Inc. in the matter of Los
Alamitos Unified School District v.
Howard Contracting, Inc., Case No.
0049194 in the Court of Appeal of the
State of California, Fourth Appellate
District, Division Three
3 Respondent's Brief of Los Alamitos 4/08/14 AMJN049
Unified School District in the matter of
Los Alamitos Unified School District v.
Howard Contracting, Inc., Case No.
0049194 in the Court of Appeal of the
State of California, Fourth Appellate
District, Division Three
4 Reply Brief of Appellant Howard 4/23/14 AMJN108
Contracting, Inc. in the matter of Los
Alamitos Unified School District v.
Howard Contracting, Inc., Case No.
0049194 in the Court of Appeal of the
State of California, Fourth Appellate
District, Division Three
5 Decision of the Court of Appeal of the 9/10/14 AMJN124
State of California, Fourth Appellate
District, Division Three, in Los
Alamitos Unified School District v.
Howard Contracting, Inc. (2014)_
Cal.App.4th_, 2014 WL 4638855,
published on September 17, 2014
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6 Text of predecessor statutes of 1957, AMJN137
California Education Code Sections 1959,
17400-17429: Stats. 1957, Ch. 2071; 1976
Stats. 1959, Ch. 2; Stats. 1976, Ch. 10
7 Infonnation filed in the case of United 4112/13 AMJN148
States v. Cervantes, United States
District COUli, Southern District of
California, Case No. 3: 13-CR-01345-
AJB
8 Judgment Returned Executed in the 9110114 AMJN149
case of United States v. Cervantes,
United States District COUli, Southern
District of California, Case No. 3:13-
CR-01345-AJB
9 Infonnation filed in the case of United 8/20114 AMJN153
States v. Paul, United States District
COUli, Southern District of California,
Case No. 3:l4-CR-0235l-WVG
10 Criminal Docket for the case of United 10/7114 AMJN156
States v. Paul, United States District
COUli, Southern District of California,
Case No. 3:l4-CR-0235l-WVG
11 Guilty Plea in the case of People v. 3/21112 AMJN159
Amigable, Superior Court of
California, County of San Diego, Case
No. CD238163
12 Guilty Plea in the case of People v. 12118/13 AMJN164
Ricasa, Superior Court of California,
County of San Diego, Case No.
SCD235444
13 Guilty Plea in the case of People v. 3118/14 AMJN169
Quinonez, Superior Court of
California, County of San Diego, Case
No. SCD235444
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14 Guilty Plea in the case of People v. 4/4114 AMJN173
Sandoval, Superior COUli of
California, County of San Diego, Case
No. SCD235444
15 Guilty Plea in the case of People v. 4/4/14 AMJN177
Gandara, Superior Court of California,
County of San Diego, Case No.
SCD235444
True and conect copies of all of these documents are attached hereto in
Appellant's Motion for Judicial Notice as Exhibits 1 through 15, respectively,
starting on the page numbers indicated above.
MEMORANDUM OF POINTS AND AUTHORITIES
A. Standard
Under subsection (a) of California Evidence Code section 452,judicial
notice may be taken of "[t]he decisional, constitutional, and statutory law of
any state of the United States and the resolutions and private acts ... of the
Legislature of this state." (Cal. Evid. Code §452(a).) And under subsection (d)
of that statute, judicial notice may be taken of "[r ]ecords of (1) any court of
this state or (2) any court of record of the United States .... " (Cal. Evid. Code
§452(d).) These statutes apply to reviewing courts such as this Court of
Appeal. (Cal. Evid. Code §459(a).) This motion seeks judicial notice of
fifteen documents that meet the statutory criteria.
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B. Statutes
First, this motion seeks judicial notice of a printout of the accumulated
statutes in Califomia Education Code sections 17400 through 17429, attached
hereto as Exhibit 1. These statutes together constitute Title 1, Division 1, Part
10.5, Chapter 4, Atiic1e 2 of the Califomia Education Code, an entire statutory
scheme the individual statutes of which must, pursuant to well-established
Califomia law, be interpreted so as "to achieve harmony among the parts."
(People v. Shabazz (2006) 38 Ca1.4th 55, 68, citing Robert L. v. Superior
Court (2003) 30 Ca1.4th 894, 903.)
The ClUX of this Appeal involves the interpretation of various provisions
of this statutory scheme. Appellant contends that Respondents' proposed
interpretation of Education Code section 17406 will render related provisions -
in particular Education Code sections 17407 and 17417 -null and of no effect,
in violation of statutory interpretation principles elucidated time and again by
the Supreme Court of Califomia. (E.g., Shabazz, supra, 38 Ca1.4th at 67-68
["An interpretation that renders related provisions nugatory must be avoided;
each sentence must be read not in isolation but in light of the statutory
scheme."]; People v. Craft (1986) 41 Ca1.3d 554, 561; In re Catalano (1981)
29 Ca1.3d 1,10-11.) In order to streamline the Court's review of the statutes
and Appellant's contentions, Appellant offers this printout of the entire
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statutory scheme, judicial notice of which is pennissible under Evidence Code
section 452(a).
In addition, to aid the Court of Appeal in its consideration of the proper
interpretation of the statutory scheme at issue in this Appeal, Appellant offers
as Exhibit 6 attached hereto the text of predecessor statutes to this statutory
scheme now codified as California Education Code Sections 17400-17429.
Exhibit 6 includes Chapter 2071 of the Statutes of California, 1957 Regular
Session, the relevant pOliions of Chapter 2 of the Statutes of California, 1959
Regular Session, and the relevant portions of Chapter 10 of the Statutes of
California, Statutes of 1976. These documents, true and correct copies of the
statutes passed by the California Legislature peliaining to this statutory
scheme, will allow the Court to independently review the development of
Sections 17400 through 17429 in order to detennine proper interpretation of
the statutes and to allow full consideration of the parties' arguments as to
legislative intent and history. Judicial notice of these statutes, offered to aid
the Court in, is pennissible under Evidence Code section 452(a).
C. Documents Related to the Case of Los Alamitos Unified School
District v. Howard Contracting, Inc.
Second, Appellant offers four documents, attached as Exhibits 2
through 5, related to the case of Los Alamitos Unified School District v.
Howard Contracting, Inc., Case No. G049194 in the Court of Appeal of the
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State of Califomia, Fourth Appellate District, Division Three: the COUli's
decision published on September 17,2014, as well as the Appellant's Opening
Brief, Respondent's Brief and Reply Brief submitted in the matter. The Los
Alamitos USD case involved a challenge to another school district's use of
Education Code section 17406 to award a construction contract without
competitive bidding. On September 17,2014, after the Appellant's Opening
Brief and Respondents' Brief in this matter were submitted, the Los Alamitos
USD Court issued its decision upholding the District's decision to enter into
the lease-leaseback arrangement. Appellant offers the decision for this Court's
consideration. Appellant also offers the briefing in that case to highlight the
fact that the Los Alamitos USD matter did not involve all of the issues present
in this Appeal and did not address all arguments presented here by Appellant.
All of these documents constitute records of a COUli of Appeal of this state and
are properly subject to judicial notice under Evidence Code Section 452(d).
D. Documents Related to Public Corruption and Bribery Cases as
Described in
Third, Appellant offers nine documents, attached as Exhibits 7 through
15, various records of the United States District Court, Southem District of
Califomia, and the Califomia Superior COUli, County of San Diego. The
documents pertain to criminal cases brought in those jurisdictions related to
corruption and bribery in the award of public contracts, including in some
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cases the award ofp ublic contracts for construction work at California schools.
All of these documents constitute records of courts of this state or of the
United States, and are properly subject to judicial notice under Evidence Code
Section 452( d).
All of the documents attached as Exhibits 7 through 15 peliain to cases
that were discussed in newspaper aIiicles as to which Appellant sought judicial
notice when opposing Respondents' demurrer in the trial cOUli. In a motion
for judicial notice at the trial court, Appellant offered the articles as evidence
of the potential impact of bribery and conuption in the award of public
contracts in order to provide context for the trial cOUli's interpretation of the
statutes at issue. Appellant argued the statutes should be interpreted so as to
minimize the likelihood of misuse of public funds, fraud, favoritism and
conuption and so as to stimulate advantageous market place competition in the
expenditure of school construction bond proceeds. The articles demonstrated
not only the possibility of fraud, favoritism, conuption and misuse of public
funds where competitive bidding is removed, such that competitive bidding
should be required unless a statute clearly and unequivocally removes any
requirement for competitive bidding, but also the deleterious effect that even
the appearance of fraud and conuption can have on the public trust in its
officials when awarding public contracts.
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The trial cOUli denied Appellant's motion for judicial notice as to the
newspaper atiicles. Appellant asselis the trial cOUli abused its discretion in
making that ruling. Respondents stated in their briefs that the newspaper
atiicles should not be admitted because they constitute only reports of "alleged
corruption by public officials" (Respondent's Brief of Torrance Unified
School District, p. 8) and reflect merely the "reporters' opinions and
conclusions regarding the investigations" (Respondent's Brief of Barnhati
Balfour Beatty, Inc., p. 9). Appellant notes that the newspaper articles provide
context and thus are properly subject to judicial notice not because the articles
prove the truth of the actual corruption in those cases - which admittedly do
not involve the patiies to this case - but because they highlight the increased
possibility of fraud and conuption where competitive bidding, encouraged by
the California Constitution, is removed as well as the diminution of public
trust in government officials when such fraud or corruption occurs or even is
merely alleged.
That said, to the extent the Court is inclined to believe judicial notice
should not be granted as to those newspaper articles, Appellant offers the
documents attached as Exhibits 7 through 15 to establish the existence of the
conuption alleged in several of those articles. All of the documents are
records of courts of the State of California or the United States District Court.
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Exhibits 7 and 8 pertain to United States v. Cervantes, United States
District Court, Southem District of Cali fomi a, Case No.3: 13-CR-0134S-AJB.
Exhibits 7 and 8 detail that Natividad Cervantes, a Department of Defense
supervisor, pled guilty to bribelY of a public official and conspiracy to bribe
public officials related to his receipt and acceptance of substantial sums of
cash in exchange for assisting a contractor in obtaining a flooring contract at
Camp Pendleton worth approximately $4,000,000. On July 2S, 2014,
Cervantes was sentenced to two years in prison.
Exhibits 9 and 10 pertain to United States v. Paul, United States District
COUli, Southem District of Califomia, Case No. 3:l4-CR-023Sl-WVG.
Exhibits 9 and 10 detail that in that case, fonner superintendent of the San
Ysidro School District Manuel Paul pled guilty to a federal count of
deprivation of benefit for political contribution under 18 U.S.C. section 601.
Paul's plea agreement is not publicly available, but the docket repOli for the
case details the August 20, 2014, guilty plea as to count one of the Infonnation
that is attached as Exhibit 9. Paul has not yet been sentenced.
Exhibits 11 through IS all pertain to a substantial corruption case
involving the Sweetwater Union High School District in San Diego County.
The exhibits consist of the guilty pleas of five defendants: Henry Amigable,
a construction company employee; Jesus Gandara, Superintendent of
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